Supreme Court to debate if sidewalk preacher may pursue First Amendment suit

By John Fritze, CNN

(CNN) — Gabriel Olivier’s lawyers will tell the Supreme Court on Wednesday that his sidewalk ministry is about sharing his faith with his fellow citizens – and should be protected by the First Amendment.

But the suburban Mississippi community he sued will counter that Olivier was part of a group that used a loudspeaker to call people “whores” and “Jezebels” as they entered a country music concert – and that his case could open federal courts to a flood of new lawsuits from people critics say are effectively trying to reverse their convictions.

The justices are being asked to sort out whether Olivier may challenge the city of Brandon’s ordinance regulating protests, even though he was convicted of violating that same ordinance months earlier. Under a 1994 Supreme Court precedent, convicted criminals generally cannot file civil lawsuits that would undermine their convictions.

“These cases have never been about religious freedom or faith-based hostility,” the city told the Supreme Court in written arguments this year. Instead, officials said, it is about Olivier’s desire to have his “preferred method of protest, without regard for the rights or interests of anyone else.”

Though the case is technical, the court’s decision could have broad implications for similar ordinances across the country. Local governments fear Olivier’s position will create new legal challenges to parade permitting requirements, zoning rules for adult businesses and regulations around homeless encampments.

The conservative 6-3 Supreme Court has repeatedly sided with religious claims in recent years, although Olivier’s case at this point is not directly about the First Amendment. There has also been a thorny debate percolating over the extent to which Americans can sue officials under a civil rights law Olivier is relying on for his case, a dispute that came into sharper view in an unrelated case earlier this year.

From Olivier’s perspective, the appeal is about his ability “to exercise his free speech and free exercise rights without fear of a new prosecution.”

Olivier is represented in part by First Liberty Institute, a group that has brought several successful religious appeals to the Supreme Court in recent years.

Olivier traveled to Brandon several times in 2018 and 2019 to share his faith on sidewalks near the city’s amphitheater. In 2019, the city passed an ordinance requiring protesters to gather in a designated area about 265 feet away. It banned loudspeakers audible more than 100 feet and required signs – regardless of their message – to be handheld.

The city described the protests as chaotic. The group sometimes held large signs depicting aborted fetuses, it said. Concertgoers would walk into traffic to avoid the group. Police would have to intervene to prevent fights between the group and attendees, the city said.

The group, according to the city, would shout out at patrons, calling them “grody,” “nasty” and “sissies.”

In 2021, as concertgoers arrived to hear country music artist Lee Brice perform, police advised Olivier and his group to move to the designated area. Olivier declined, according to court records, and was arrested for violating the ordinance. He pleaded no contest and was sentenced to a fine and a year’s unsupervised probation.

Olivier did not appeal his conviction – an avenue he might have used to raise his First Amendment claims. Instead, he relied on a Reconstruction-era federal law known as Section 1983 that allows people to sue state and local officials for violating their constitutional rights. As part of that lawsuit, Olivier argued the city ordinance violated his First and Fourteenth Amendment rights.

The case turns on a 1994 Supreme Court decision, Heck v. Humphrey, which generally bars people convicted of a crime from filing a civil suit against police that would, if successful, effectively let them use a backdoor to invalidate their conviction. In this case, the city says Olivier’s suit would do just that: He still had eight months left on his probation when he sued.

So if a federal court ruled that the city ordinance was unconstitutional, the city reasons, it would have shortened his punishment.

But Olivier countered that his civil suit has nothing to do with his prior conviction. Rather, he said, his litigation is about blocking future enforcement of the ordinance and would not disturb his prior conviction.

“The federal courthouse doors shouldn’t be shut to Olivier simply because he’s been prosecuted for exercising his rights in the past,” his attorneys told the Supreme Court. “If anything, his past prosecution confirms that the threat of future enforcement against him is real.”

The Supreme Court shut down a Section 1983 lawsuit in June dealing with South Carolina’s effort to block Medicaid funding for Planned Parenthood. That decision drew a sharp debate between conservative Justice Clarence Thomas and liberal Justice Ketanji Brown Jackson about the scope of the law.

Thomas called for the court to “reexamine” its Section 1983 jurisprudence, which he wrote “bears little resemblance to the statute as originally understood.”

No other justice joined Thomas’ opinion.

Jackson, joined by her liberal colleagues, pushed back on Thomas’ suggestion, writing that it was worth “pausing briefly to think about whether the historical account he offers reflects the level of depth, nuance, or context needed to support the wholesale reappraisal he is envisioning.”

A decision is expected next year.

The-CNN-Wire
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